How My Employer Put the “FML” in FMLA -The Toast

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About nine months ago, as it became obvious that I was With Child to even the most absent-minded professors in my engineering research center, I had the following conversation about two or three times a day:

Nervous Graduate Student: So, um, when are you going out on maternity leave?

(I wrangle all of the ~50 graduate students ‘round these parts.)

Me: Well, my due date is March 7th, but since [university name redacted] doesn’t have maternity leave, I’m going to be working as long as I can right up until then.

NGS: Wow. Really?

Me: Well, it’s not like I’m doing any heavy lifting, and I’d be sitting at a computer at home anyway, so yeah.

NGS: No, I meant the part about [redacted] not having maternity leave.

Me: Yeah, it sucks. I’ll be taking all of the annual and sick leave I’ve saved up for the past five years instead, and that’s about two and a half months’ worth. But don’t worry; I’ll be checking my email from home and [Ridiculously Competent Assistant] will be able to help you with anything in my absence.

At this point, the male students would nod and go on about their days, and the female grad students would stick around in an increasingly panicked state to ask about that whole saving annual and sick leave thing, since their contracts don’t include leave. The foreign grad students were particularly dismayed to hear that the United States doesn’t have paid federal family leave but instead makes do with something called the Family Medical Leave Act (or FMLA, for us acronym-obsessed HR types.) It’s unpaid leave for up to twelve workweeks in a twelve-month for qualified* employees at qualified** companies for qualified*** family medical circumstances. As per the law, employees can use accrued annual or sick leave “in accordance with the employer’s policy.”

That, as it turns out, is a major sticking point.



Because I compulsively over-plan everything, I had discussed the ins and outs of FMLA a few years prior with a coworker who was our department’s previous HR person. She’d told me that it was more of a job protection mechanism than anything else, and that employees could take sick, annual, or leave without pay as they saw fit, so long as their requests were approved. Armed with this information, I then spent the next several years carefully hoarding leave. It took a while longer than anticipated to get knocked up, but the silver lining was that I had lots of paid time off. Or so I thought.

Just to be on the safe side, I called our Human Resources liaison six weeks before my due date to make sure that I understood the FMLA process thoroughly. I’d worked with her before and was somewhat concerned about her lack of interest in the “human” part of HR, but everything I could see online seemed straightforward. She pointed me to a portion of the HR website with links to several forms and told me to fill out the request form when I wanted to take FMLA. It indicated that I could take sick and annual leave so long as I had enough accrued, and that I “may be required to provide proof of medical or qualifying exigency certification.” Since the proof of both medical and qualifying exigency was preventing me from sitting closer than a foot from my desk, I figured the hard part would be having the kid, right?

Thanks to the wonders of modern epidural technology, fourteen hours of labor wasn’t that bad. The net result was the most wonderful baby ever to be born, especially since she showed up five days early. I did, as promised, manage to work right up to my due date, which meant that I wobbled into the office five days later with a Proof of Birth form in hand and filled out the required form, checking the box indicating that I wanted to take sick and annual leave concurrently with my FMLA. My coworkers then shooed me home, assuring me that everything would be fine.

Early the next week, I called the HR liaison to check on the status of my paperwork and to figure out exactly how to report my leave—did I report annual or sick first? We then had the following conversation, which I have transcribed here to the best of my memory:

HRL: Oh, you can’t take sick leave during FMLA after childbirth. 

Me: Say what now? 

HRL: FMLA after childbirth is for bonding with your baby. You’ll need to take annual leave for that. 

Me: Um, I’m still having trouble walking, and I’m crying for no discernible reason every fifteen minutes or so. I just went through a major medical event. Why can’t I use sick leave? 

HRL: You’re changing your story!  You said that you were taking leave to care for your baby! 

Me: No, the story has stayed the same: I had a baby, and now I am taking care of both of us. The FMLA form says that I can take sick and annual leave so long as I have enough accrued. I have two and a half months of leave between them. Why can’t I use my accrued sick leave?

HRL: Please read the form again. 

Me: I’m reading the form, and I don’t see anything on here about restrictions on sick leave. 

HRL: Well, that’s [redacted] policy. 

At this point, I began to cry for a very discernible reason and realized that I was now sitting on the kitchen floor.

Me: I spoke to you six weeks ago and asked about the FMLA process. You didn’t say anything about this policy at that time. 

HRL: You didn’t ask about leave! Why didn’t you ask your department HR person?

Me: That would be me. 

HRL: Oh. Well, please read the form again. 

Me: Please, I have spent five years saving up sick and annual leave so that I could take as much paid time as possible off after having a child. If I can only take annual leave, that means I only have six weeks. Please. Is there anything you can do? 

HRL: I’m sorry, but that’s the policy. 

Me (attempting to retain some vestige of professionalism):  Thank you. 

I sat on the kitchen floor and cried as quietly as possible so as not to wake my daughter. All I could think was that it had already been a week and a half since she had been born, and I absolutely could not leave her at day care four and a half weeks from then. I don’t know how to describe the overwhelming sense of panic and misery, other than that it felt like a scream inside my head: DON’T MAKE ME LEAVE MY BABY. I had spent years commiserating with people online about FMLA issues, but I never once thought I would be among them. Right then and there, on my kitchen floor, I understood with absolute clarity why women quit their jobs after having kids. I will never, ever question it again.

In contrast, here’s how my husband’s request for FMLA paternity leave went earlier the same week:

Mr. W: Hi, [Competent HR Person.] Here’s my Proof of Birth form as backup for the FMLA paperwork.

CHRP: Oh, don’t worry about that. I’ve already filed it for you, and you’re good to go for the next month. Do you have any pictures of the little darlin’? Goodness, she is so cute!

*who have been working full-time for a year or longer at a qualified company

**employs fifty or more people

***to care for oneself or an immediate family member due to extended illness, injury, childbirth, or the adoption of a child

Mother's Day New PosterAfter about fifteen minutes or so of crying into my bathrobe sleeve, I slammed into HR Wrangler mode. There was a law, it had been passed back when Kurt Cobain was still alive, goddammit, and I was going to make sure that [redacted] gave me whatever pathetic protection it afforded. I went back to the HR FMLA site, which still contained a list of forms and nothing more. I then reviewed the Department of Labor FMLA page, which is where I found the clause about employer policy regarding taking paid leave. Just for the hell of it, I Googled “FMLA [redacted] policy” and guess what popped up? An unlinked FMLA policy page.

I then scoured said unlinked FMLA policy page for any mention of restrictions on leave during FMLA. Unsurprisingly, there aren’t any. Instead, there are several descriptions of what leave can be used, and under what circumstances. An employee may indeed take annual leave after a child is born; sick leave may be used for a “serious medical condition” such as “pregnancy or prenatal care,” though crucially not recovery from childbirth. I believe the technical term for this sort of verbiage is “slicker than snake shit.”

I also noticed a line at the very bottom of the FMLA request form. It said, “I have reviewed this document and verify that the information provided or attached is correct. I have read and understood the FMLA policy. (add link)”

Yes, my fine employer had put a draft form up on their HR website. They had never updated it to include a working link to the evasive and disingenuous FMLA leave policy. This lack of attention to something so basic accurately summarizes the level of care and interest [redacted]’s HR department demonstrates towards employees who are severely ill or going through extremely stressful life events. I considered quitting on the spot.

What I decided to do instead, after a discussion with my husband, was to take the six paid weeks HRL had agreed that I could use, and then take the remaining six unpaid weeks as half-time leave without pay, stretched over three months. It would be tight, but we could manage.

Two months later, HR held a forum, chaired by HRL, to announce certain clarifications to [redacted]’s FMLA policy. The request form now includes a working link to the FMLA policy, which still does not openly state that employees cannot take sick leave for recovery from childbirth. Employees can now take sick leave for a maximum of three business days after “leaving a doctor’s care” after giving birth. “Leaving a doctor’s care” is synonymous with “leaving the hospital.” After that, any paid FMLA will need to be annual leave. Since [redacted] caps annual leave accrual at six weeks, that means that employees who cannot afford to take unpaid leave will only be able to take six weeks of family leave instead of their federally mandated twelve. HRL mentioned as an aside that “things would be a bit different for employees recovering from a C-section.” So generous.

You will be shocked to hear that the updated policy was developed in part by a man who does not have children. Due to my kid’s six-month doctor’s appointment, I was not able to attend the forum, which is probably why I still have a job and you haven’t read a national news report about someone stuffing a table up a coworker’s nose sideways.

The part I try to remember most of all is that I’m lucky. I have paid sick leave in the first place, and I work for an employer that qualifies for FMLA. Even when I was freaking out and sleep-deprived, I still knew enough to figure out what my legally guaranteed options were. My child care provider was flexible enough to work with my schedule if I’d needed to change it dramatically. This is not the case for a huge number of people in this country. This does not do a whole lot to make me feel better, on balance.

The takeaway from all of this: employers in the U.S. do not care about mothers of young children at all, unless we’re consumers of their products. It might be more accurate to say that they view us as horrible useless burdens who need to be ushered back to full-time work as swiftly as possible. They will do anything in their power to keep employees from exercising their federally guaranteed rights to twelve weeks of MOTHERFUCKING UNPAID LEAVE, up to and including forcing employees to give up paid sick leave. If you are planning on taking FMLA any time in the near future and you intend to use paid leave, double and triple-check your employer’s policy. Do not assume anything, or you may find yourself crying as if your heart would break while sitting on your kitchen floor with no idea how you got there.

Karen W. is a Duke City denizen with opinions about pop culture, gender, and ice cream.

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